[00:00:03] Speaker 00:
Ms.

[00:00:04] Speaker 00:
Overmyer, when you're ready, each side will have 20 minutes, and you will keep your own time.

[00:00:08] Speaker 02:
Thank you, Your Honor.

[00:00:10] Speaker 02:
Good morning.

[00:00:11] Speaker 02:
May it please the court?

[00:00:12] Speaker 02:
Wendy Overmyer for Gail Manney, and I'll reserve five minutes for rebuttal, and I'll watch my time.

[00:00:18] Speaker 02:
First, I'll address the impact Duarte has on our Bruin issue, as this court requested.

[00:00:23] Speaker 02:
And Duarte supports that 922A6 is unconstitutional here.

[00:00:30] Speaker 02:
And what Duarte did is clarify many things under Bruin and it clarified the standard and it clarified which law is abrogated and it explains what each of the two prongs requires.

[00:00:44] Speaker 02:
So first, we now know that the review is de novo because Ms.

[00:00:49] Speaker 02:
Manning was indicted prior to Bruin being issued and we also know that pre-Bruin analysis of a firearm statute is abrogated

[00:00:59] Speaker 02:
by Bruin because those cases did not apply the two-step framework.

[00:01:05] Speaker 02:
But most importantly, what Duarte does is it explains how to apply the two steps of Bruin.

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And so with the first prong, which is does the Second Amendment cover the issue here, you look to three things.

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The individual, which we know Manny does qualify as the people as she's a U.S.

[00:01:24] Speaker 02:
citizen, the type of arm,

[00:01:27] Speaker 02:
Here are the handguns, which are the same as in Duarte, which are covered.

[00:01:31] Speaker 00:
So you agree that Duarte does not dictate the outcome.

[00:01:34] Speaker 00:
That's a decision of a three-judge panel of our court.

[00:01:37] Speaker 00:
But what you're suggesting is that we should do the review that basically the Duarte panel did and reach the merits of your Bruin argument by reviewing de novo the claim that 922 is unconstitutional.

[00:01:49] Speaker 02:
Yes, precisely, because this is a regulation that regulates the purchase of firearms, and so it falls under the Second Amendment.

[00:01:56] Speaker 02:
And so then we would need to move to the second prong, which the government did not offer any historical cases here.

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So we argue that they have waived the second prong in Bruin here in this case.

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And they certainly didn't offer cases that are distinctly similar to the how and the why of the A6 statute.

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And so we would ask that this court finds that 922A6

[00:02:23] Speaker 02:
falls under Bruin requires the two-step analysis and that the government has waived the second prong by not providing historical analogs on appeal.

[00:02:44] Speaker 02:
And for the remainder of my time, I'll address two issues if I can.

[00:02:48] Speaker 02:
Extrinsic evidence considered by the jury and suppression of the cell phone.

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First, with extrinsic evidence considered by the jury, the court erred in both prongs of the two-prong test, whether the jury was exposed and second, whether it could have affected the verdict.

[00:03:09] Speaker 02:
We know that the jury was exposed to outside evidence about supposed differences between the Glock 43 and the Glock 19.

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The district court was wrong that the jury was not exposed to this evidence, but the

[00:03:23] Speaker 02:
District Court found juror R's testimony credible, and juror R specifically testified that he brought up the subject of a Glock 43 versus a Glock 19, and a juror said they were different size guns.

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And that is evidence that was not in the record.

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At no time was the caliber or capabilities of a Glock 43 in its magazine compared

[00:03:47] Speaker 02:
to a Glock 19.

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So that was another error.

[00:03:50] Speaker 02:
I apologize.

[00:03:51] Speaker 04:
How long did the jury come?

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How long did it take the jury to reach a verdict?

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The jury deliberated here for about one hour.

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And that is another issue that the district court got wrong was the timing of this extrinsic evidence.

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The juror testified it happened within the first five minutes of that hour.

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And the district court found it was only minutes before the verdict that the jury

[00:04:16] Speaker 02:
was exposed to this evidence.

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So that's another error in the district court's ruling.

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And then the second prong, whether it could have affected the verdict, which requires a reasonable possibility.

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And that, again, is the government's burden to disprove that.

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The district court used the wrong subjective standard here.

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It looked to whether this actually did affect juror R's verdict.

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Not any of the other jurors, but juror R's verdict.

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When the question is really one of objectiveness, would this have affected any reasonable jurors verdict?

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And again, we know this was material because there was a jury note submitted on the Glock 43 and the Glock 19, and the government specifically addressed this in closing.

[00:05:06] Speaker 02:
asking, so why would she be interested in buying a magazine for a Glock 43 if she was purchasing two Glock 19s for herself?

[00:05:14] Speaker 02:
So who had the Glock 43?

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And so to answer that question, the jury went to outside evidence that there were differences between the Glock 43 and the parts could not be interchangeable.

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So because the court got most of its factors wrong,

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We believe this court should reverse on finding those clearly erroneous.

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It was wrong as to receipt that the found that the differences were not brought up to the jury when they were.

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The timing that I've discussed and the extent the district court found the evidence was, quote, immediately dismissed by everybody.

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That was not juror's testimony.

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That does not occur anywhere in the record.

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And also, you cannot consider the subjective effect on any particular juror.

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It's whether they were exposed.

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And in the context of the jury note and the government's closing, this had a reasonable possibility that it could have affected the verdict.

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And so we asked the court to vacate all counts and remand for a new trial and also order suppression of the cell phone on remand.

[00:06:31] Speaker 02:
which is the government's heavy burden to prove there was voluntary consent to search that cell phone, and it must prove it's freely and voluntarily given, and that's not to be lightly inferred.

[00:06:44] Speaker 04:
Council, what do you point to in the record to support your contention that Manny did not consent to the search of her cell phone?

[00:06:51] Speaker 02:
Well, there are seven factors to consider that this court sets forth, and the district court set forth

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some factors, but it stopped at the custodial factor.

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So the district court determined that she was not in custody, which we disagree with for reasons we have in the briefing, that she was not in custody and didn't proceed any further to the other six factors.

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And so those remaining unaddressed factors were undisputed here, and they are in Ms.

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Manny's favor that the officers were armed.

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Now, the guns were not drawn, but they were visibly armed.

[00:07:31] Speaker 02:
That Miranda was not given at the time outside of the firearm store is the point we're discussing where the officer sees the firearm.

[00:07:42] Speaker 02:
I'm sorry, sees the firearms and sees the cell phone.

[00:07:45] Speaker 02:
And the later Miranda was insufficient.

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She was not told at the time.

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He asked for the cell phone that she could refuse consent.

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Are they required to tell her that she can refuse consent?

[00:07:56] Speaker 02:
It's one of the factors.

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And none of the factors are dispositive.

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And she was not told a search warrant could be obtained.

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She also has limited education, having not finished high school.

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She has dyslexia, as is in the record before the court.

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And she lacks any experience.

[00:08:14] Speaker 02:
with law enforcement because this is her first felony offense.

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And so we asked this court to order suppression of the cell phone because the court not only was incorrect in its custody finding, but it failed to address the remaining six factors for the custodial analysis.

[00:08:37] Speaker 02:
And I can go through just a few factors that the court got wrong as to custody.

[00:08:42] Speaker 02:
The number of officers, the district court got wrong.

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The district court said there were only two officers when in fact three ATF officers were initially there and a fourth officer came once her sister was handcuffed and taken to the ground when she tried to leave.

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So there were actually four officers present.

[00:09:01] Speaker 04:
Is there a magic number, counsel, where too many officers is too okay but three is not?

[00:09:07] Speaker 02:
It's all contextual on the total circumstances.

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And I think that indicates a heavier police presence, there being four officers rather than two.

[00:09:16] Speaker 02:
The court found she was not aggressively approached, but the agent testified that he agreed he yelled her name for her to stop.

[00:09:26] Speaker 02:
He took her, he says, I'm going to take these.

[00:09:28] Speaker 02:
He took all the firearms she had just bought and took them out of her.

[00:09:33] Speaker 02:
out of her hands, but most importantly, her sister was cuffed and taken to the ground when she tried to leave the parking lot.

[00:09:43] Speaker 02:
So if you look at the agent's testimony, he testifies his back was to the car where her sister was.

[00:09:50] Speaker 02:
So Miss Manny was facing her car.

[00:09:54] Speaker 02:
So she was facing the agent.

[00:09:56] Speaker 02:
So Ms.

[00:09:57] Speaker 02:
Manny could see her sister trying to leave being taken to the ground, being put in handcuffs and not being allowed to leave.

[00:10:05] Speaker 02:
Was she in a position where she could hear?

[00:10:06] Speaker 02:
It was about 150 feet away.

[00:10:10] Speaker 02:
So I imagine she could maybe not hear the specifics of what was going on, but certainly know that there was a scuffle going on and another officer arriving

[00:10:22] Speaker 02:
you know, quickly in a car to assist with, so her sister wasn't free to leave.

[00:10:27] Speaker 04:
I want to go back to where you stated that, you know, the court got it wrong that she was not aggressively approached and there was apparently the officer yelled at her.

[00:10:37] Speaker 04:
Give me the context for that.

[00:10:38] Speaker 04:
How far was he?

[00:10:39] Speaker 04:
Was he yelling as in, hey, get down, or was he yelling as in, you know, Miss Manny, I need you to turn around because she's 100 feet away from him?

[00:10:46] Speaker 02:
It's not entirely clear.

[00:10:48] Speaker 02:
There's no recording.

[00:10:50] Speaker 02:
There's no body cam recording, even though the ATF planned this interdiction.

[00:10:54] Speaker 02:
They didn't record the encounter.

[00:10:56] Speaker 02:
So it appears she was stopped on the sidewalk directly leaving the firearms store.

[00:11:02] Speaker 02:
So I can't imagine it was a very big distance.

[00:11:05] Speaker 02:
And she yelled her name.

[00:11:06] Speaker 01:
We don't know, right?

[00:11:08] Speaker 02:
And we don't know, precisely.

[00:11:09] Speaker 04:
And I'm sorry, the officer yelled her name?

[00:11:14] Speaker 02:
Yes, the officer yelled her name.

[00:11:17] Speaker 02:
And the district car also found she was told two to three times that she was free to leave before he asked for her cell phone.

[00:11:24] Speaker 02:
And that, again, is nowhere in the record.

[00:11:27] Speaker 02:
The first mention of her being told she's free to leave is when he asks her if she would like to come to the station with him.

[00:11:36] Speaker 02:
And that's after he already has her cell phone and after he already has her firearms, the merchandise that she just purchased.

[00:11:45] Speaker 01:
Wasn't there also an offer that she could drive herself?

[00:11:48] Speaker 02:
There was.

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Of course, her car was over by her sister who was on the ground in handcuffs, but she did choose to go with the officer.

[00:11:56] Speaker 02:
She chose not to drive.

[00:11:58] Speaker 04:
And counsel, at any point, did she tell the officer, go ahead, you can look through my phone, or something to that effect?

[00:12:04] Speaker 02:
Later at the ATF station during the second part of the interrogation, but not initially at the outside.

[00:12:13] Speaker 02:
And so when is it that the officer actually looked through the phone?

[00:12:17] Speaker 02:
The officer, well, there was a question of whether the officer called the phone and then looked at the phone to see if he had called the correct number to identify that as her phone.

[00:12:28] Speaker 02:
And he submitted a new report of investigation after his testimony that he did in fact call her phone after he had taken the phone and then checked the phone to see that it was, you know, her phone that he had called to identify that.

[00:12:44] Speaker 02:
So I think that qualifies as a search.

[00:12:48] Speaker 04:
Okay, and when did that happen?

[00:12:50] Speaker 04:
Had she already said, you can look at my phone or was that prior to?

[00:12:53] Speaker 02:
No, that was right after he took the cell phone outside of the firearm before they went to the ATF station and before that entire interrogation.

[00:13:04] Speaker 04:
Okay, so it was only once she was at the station that she, that Miss Manny said to the officer, you can look at my phone?

[00:13:10] Speaker 02:
Yes, and they retained the phone the entire time.

[00:13:14] Speaker 02:
And so we ask the court to vacate all counts for man for new trial, for jury misconduct, and dismiss the case altogether based on Duarte and the government's failure to raise a historical analog.

[00:13:29] Speaker 02:
Thank you.

[00:13:40] Speaker 00:
Good morning, Your Honors.

[00:13:41] Speaker 03:
Thank you, Your Honor.

[00:13:41] Speaker 03:
Good morning, Your Honors.

[00:13:42] Speaker 03:
May it please the court.

[00:13:43] Speaker 03:
I'm Nadia Ahmed on behalf of the United States.

[00:13:46] Speaker 03:
Your Honors, I'll start where we just left off and really emphasize that the court, I urge the court to turn back to the record itself because this is a, these are factual findings that the district court made.

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He made them carefully.

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He had an evidentiary hearing.

[00:14:00] Speaker 03:
The things that this court asks the district court to do, he did.

[00:14:04] Speaker 03:
And when you look at his findings or rather when you look at the evidence that's in the record, it's not quite as it's been represented to you this morning.

[00:14:11] Speaker 03:
I'll turn first, Your Honors, to

[00:14:13] Speaker 03:
even just how he was approached in that characterization.

[00:14:16] Speaker 03:
So if you look at 1176, I'll get that volume number, Your Honors.

[00:14:22] Speaker 03:
I want to say five, but it's ER 1176.

[00:14:24] Speaker 03:
So this is the cross-examination of the agent.

[00:14:29] Speaker 03:
And it was actually the examiner who inserted the word yelled, that he yelled at Ms.

[00:14:34] Speaker 03:
Manton.

[00:14:35] Speaker 03:
And he just accepted it, and he said yes.

[00:14:37] Speaker 03:
And then later, like a few questions later, going on to 1177,

[00:14:42] Speaker 03:
That same questioner said, and you called out to her.

[00:14:44] Speaker 03:
And the agent again said, yes, I called out to her.

[00:14:47] Speaker 03:
And then finally, at the bottom of 1177, the questioner said, OK, so you came up behind her and you said her name.

[00:14:54] Speaker 03:
And the officer says, yes, that's what I did.

[00:14:56] Speaker 03:
And essentially, it's exactly what your honor was asking.

[00:14:58] Speaker 03:
They were coming out of the store.

[00:15:00] Speaker 03:
She was coming out first.

[00:15:01] Speaker 03:
He was behind her.

[00:15:02] Speaker 03:
He said her name.

[00:15:03] Speaker 03:
She turned around.

[00:15:04] Speaker 03:
And then they began the engagement.

[00:15:06] Speaker 03:
It was in an open parking lot.

[00:15:08] Speaker 03:
She was at all times free to leave.

[00:15:11] Speaker 03:
The testimony was that he did not block her exit.

[00:15:13] Speaker 03:
Initially, there was a TFO officer with him.

[00:15:16] Speaker 03:
The officer went away to assist with the sister.

[00:15:20] Speaker 03:
Another thing that I encourage you to look at in that portion of the record is that she never voices concern for the sister.

[00:15:27] Speaker 03:
Ms.

[00:15:27] Speaker 03:
Manning is upset, but she's upset.

[00:15:29] Speaker 03:
The focus of her upset feelings are entirely about the fact that Mr. Brown, the man that she's in a relationship with whom she has children, that he had left her.

[00:15:40] Speaker 03:
And so she repeatedly says that during the parking lot.

[00:15:42] Speaker 03:
She's upset about that.

[00:15:43] Speaker 03:
And then when they get to the ATF office, she elected to ride with Officer Karen there, even though he gave her the option to go in her own car.

[00:15:51] Speaker 03:
So clearly that issue with the sister, whatever it was, must have been resolved.

[00:15:54] Speaker 03:
But in any event, she decided to go with Officer Karen.

[00:15:57] Speaker 03:
When they get to the station in the interview room, she continues to be upset.

[00:16:01] Speaker 03:
But again, her focus is all on the fact that Mr. Brown has left her to deal with this situation.

[00:16:08] Speaker 03:
disagree with any characterization that she, A, there's nothing in the evidence in the record to indicate that she saw anything about the sister.

[00:16:16] Speaker 03:
In fact, when the officers were asking her a question about her sister, she literally said to them in the record, go ask her yourself.

[00:16:24] Speaker 03:
And so it didn't seem that she was in any way really concerned, at least anything from the record, for that to be something that the court should consider.

[00:16:33] Speaker 03:
Now, the agent does ask for the cell phone in the parking lot.

[00:16:36] Speaker 03:
She does give it to him.

[00:16:38] Speaker 03:
The record's not clear that he looked at it.

[00:16:41] Speaker 03:
He called it to confirm that that's the right number, as was his practice.

[00:16:45] Speaker 03:
But then they go to the station.

[00:16:48] Speaker 03:
So in your honor, I see that the court's thinking about that.

[00:16:51] Speaker 03:
I will submit that on the record, he could have heard the ring.

[00:16:54] Speaker 03:
It's not clear that he looked at that phone at that time, even in his subsequent report.

[00:16:58] Speaker 03:
What happened was that there was an evidentiary hearing on the motion to suppress.

[00:17:02] Speaker 03:
He testified.

[00:17:03] Speaker 03:
He was pressed about whether or not he had called her.

[00:17:05] Speaker 03:
Afterward, he went back and looked at the call logs, and then he submitted a statement because he wanted to bring it back to the court's attention, which the government did.

[00:17:12] Speaker 03:
They filed a notice, and then the court again considered it and again found that there was no issue with consent as to the phone.

[00:17:19] Speaker 03:
And then, of course, once we get to the station, she repeatedly told the officer, go ahead, look at my phone.

[00:17:24] Speaker 04:
OK.

[00:17:25] Speaker 04:
So here's my question.

[00:17:26] Speaker 04:
Yes.

[00:17:28] Speaker 04:
It's the government's position that Manny consented to the search of her phone, but Agent Carson

[00:17:34] Speaker 04:
didn't remember calling her phone.

[00:17:37] Speaker 04:
He then looks at the call logs, remembers, sends something back to the court and saying, oops, I remembered.

[00:17:43] Speaker 04:
I guess my concern is how much can we trust his testimony given his lapse in memory?

[00:17:53] Speaker 04:
I mean, what else isn't he remembering?

[00:17:55] Speaker 03:
That's a fair question, right?

[00:17:57] Speaker 03:
But I think that when you look at the evidence in the whole of the record, his testimony is consistent not only throughout

[00:18:04] Speaker 03:
He himself is consistent in what he says happened.

[00:18:06] Speaker 03:
He very readily said, I don't exactly remember that when he was on the stand.

[00:18:11] Speaker 03:
But his testimony is also consistent with what happens in the interview room, which is recorded.

[00:18:17] Speaker 03:
There was a recording.

[00:18:17] Speaker 03:
There's video.

[00:18:18] Speaker 03:
The court has it.

[00:18:19] Speaker 03:
There was a transcript.

[00:18:20] Speaker 03:
It's a part of the record.

[00:18:21] Speaker 03:
You can see that in that portion, it is also consistent with what he said happened because she repeatedly tells him, Sue is fontaine.

[00:18:28] Speaker 03:
They're not really talking about anything to do with the phone.

[00:18:30] Speaker 03:
And she keeps saying, you can look at it.

[00:18:31] Speaker 03:
You can look at it.

[00:18:33] Speaker 03:
Actually, there's a point when she also says, you know, you can keep the guns for however long.

[00:18:38] Speaker 03:
But then she asked at one point, so am I just never going to get them back?

[00:18:41] Speaker 03:
And he explains to her, you know, this is the process.

[00:18:44] Speaker 03:
And then she says, OK, so you're going to keep my phone too?

[00:18:46] Speaker 03:
And he said, well, you know, this would be the process.

[00:18:49] Speaker 03:
It would be a day if you consent.

[00:18:51] Speaker 03:
And then she readily again says, I consent.

[00:18:53] Speaker 03:
And then she obviously, as the court knows, signs that consent form as well.

[00:18:58] Speaker 03:
And it's only after she signs it that they actually do the download, or they actually get into the phone.

[00:19:02] Speaker 03:
So there's only after that written consent is given and that verbal consent is reaffirmed that they actually inspect the phone.

[00:19:10] Speaker 04:
So counsel for Ms.

[00:19:14] Speaker 04:
Manning stated that we should toss all of that, partly based on the fact, some of the factors that she gave us.

[00:19:22] Speaker 04:
She doesn't believe Miranda was given, not told that she could say no,

[00:19:28] Speaker 04:
One of the things she mentioned, I believe, and I don't want to misquote her, but was that Miss Manny had either dyslexia or some difficulty understanding things that she read.

[00:19:39] Speaker 04:
And so I know that we have a signed authorization or a consent.

[00:19:44] Speaker 04:
Should we take into account the fact that she may not have been able to understand it?

[00:19:48] Speaker 03:
Your Honor, I wouldn't ask the court to completely discount that.

[00:19:52] Speaker 03:
It's in the record from her testimony.

[00:19:54] Speaker 03:
There's no independent medical expert.

[00:19:57] Speaker 03:
That said, Your Honor, I will say that the depth of her understanding is reflected in the entirety of that interview, where she's following along.

[00:20:06] Speaker 03:
She's very responsive.

[00:20:07] Speaker 03:
Even to the extent, I guess, Your Honor, what I would say is that even to the extent there may have been an issue in reading it, she probed and followed up orally and reaffirmed when he asked her.

[00:20:19] Speaker 03:
He essentially said, it would be a day if you consent.

[00:20:23] Speaker 03:
It couldn't be any clearer.

[00:20:25] Speaker 03:
And she said, I consent.

[00:20:26] Speaker 03:
So we would submit, Your Honor, that there's no issue with the voluntariness.

[00:20:32] Speaker 03:
The district court didn't err in considering all of the factors.

[00:20:35] Speaker 03:
He did look at the factors both for the custodial issue and then also for the cell phone.

[00:20:41] Speaker 03:
And there was some dovetailing there.

[00:20:42] Speaker 03:
And so that's why the record reflects that he's taking.

[00:20:45] Speaker 04:
Let me ask this.

[00:20:46] Speaker 04:
You heard counsel talk about the number of officers present when Ms.

[00:20:52] Speaker 04:
Manny was contacted.

[00:20:54] Speaker 04:
Please respond to that.

[00:20:55] Speaker 03:
Your Honor, when she was initially contacted, Agent Karen comes from behind her and he contacts her.

[00:21:03] Speaker 03:
The record sounds like very quickly that the TFO joins them.

[00:21:09] Speaker 03:
So there's two right there.

[00:21:10] Speaker 03:
Your Honor, I would submit that whether there's two or four, that's certainly not a heavy presence that reconfigured this into a custodial encounter in the parking lot.

[00:21:20] Speaker 03:
She was never surrounded by the officers.

[00:21:23] Speaker 03:
The other two officers are, again, over with her sister.

[00:21:25] Speaker 03:
at least one and then maybe two, and then eventually all three.

[00:21:28] Speaker 03:
So for a large portion of their encounter, it's just her and Karen dealing face to face with each other.

[00:21:33] Speaker 03:
So Your Honor, we would submit that that factor certainly didn't, the district court did not err in finding that the number of officers was not indicative of a custodial encounter in the parking lot.

[00:21:42] Speaker 04:
Is it your understanding that those officers had the recording devices on them?

[00:21:47] Speaker 04:
Generally, they have the cameras or whatnot?

[00:21:49] Speaker 03:
They testified, Your Honor.

[00:21:50] Speaker 03:
The agent testified, Karen, that at least he was in plain clothes.

[00:21:54] Speaker 03:
He didn't have any kind of reporting device.

[00:21:56] Speaker 03:
He readily explained, essentially, that he didn't have anything recording on him.

[00:22:02] Speaker 03:
He had a cell phone that he guessed he could have, but he was busy engaging with her directly.

[00:22:08] Speaker 03:
And then, Your Honor, if the court is ready, I'd like to just briefly touch on those other items that counsel brought up.

[00:22:14] Speaker 03:
First, Your Honor, I would, again, when you look at the record, it's just as to the juror issue.

[00:22:21] Speaker 03:
At first blush, it feels uncomfortable.

[00:22:23] Speaker 03:
But when you actually look at the record, the juror couldn't have been any clearer that he did not look at issues of caliber.

[00:22:30] Speaker 03:
He did not consider the information that he looked at for anything other than for his own personal use.

[00:22:37] Speaker 03:
It did not sway him at all in his verdict.

[00:22:40] Speaker 03:
And so specifically, Your Honors, I want to talk to you about this question of whether or not the district court got the standard wrong.

[00:22:49] Speaker 03:
Because it's a little bit confusing when you look at the case law that it says, could it have affected?

[00:22:54] Speaker 03:
But then it says that the question, the prosecution bears the burden, ultimately, of proving beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict.

[00:23:04] Speaker 03:
So when you say it's an objective standard,

[00:23:06] Speaker 03:
It's not what a reasonable juror have.

[00:23:10] Speaker 03:
It's looking at the accumulation of evidence in this case.

[00:23:14] Speaker 03:
Was her guilt so clear that this independent evidence, this extrinsic evidence, beyond a reasonable doubt, did not impact that verdict?

[00:23:25] Speaker 03:
And we submit to Your Honors that it didn't.

[00:23:28] Speaker 03:
The record also does reveal that there's a little bit of back and forth with the juror.

[00:23:34] Speaker 03:
And at first, he says that they looked at it

[00:23:36] Speaker 03:
It sounds like they deliberated for about an hour.

[00:23:39] Speaker 03:
But actually, when you look at ER 429, he clarifies when the judge starts to ask him questions that it came up five minutes into deliberations.

[00:23:53] Speaker 03:
This is a factor for the court to consider.

[00:23:55] Speaker 03:
It came up five minutes into the deliberations before the order form was signed.

[00:23:59] Speaker 03:
And then there was a suggestion that they deliberated for an hour.

[00:24:03] Speaker 03:
And then the jurors said, no, verdict was rendered in minutes, and then they ate lunch.

[00:24:08] Speaker 03:
And that's all on ER-429.

[00:24:10] Speaker 03:
So it is correct that they had their verdict within minutes.

[00:24:13] Speaker 03:
And then they spent the rest of that hour, it sounds like, from that juror eating lunch.

[00:24:16] Speaker 03:
So again, we would submit that the only thing, the district court did not get it wrong.

[00:24:22] Speaker 03:
The juror did look.

[00:24:24] Speaker 03:
at two images of a 43 and a 19, Glock 43 and Glock 19.

[00:24:29] Speaker 03:
He looked at those images.

[00:24:30] Speaker 03:
That's what he said.

[00:24:31] Speaker 03:
The district court said he looked at them.

[00:24:33] Speaker 03:
The district court found, however, with the overwhelming evidence in the record that that did not affect the verdict beyond a reasonable doubt, that the government had proved that.

[00:24:41] Speaker 03:
And that overwhelming evidence, Your Honor, included the WhatsApp communications between Gayle Manny and her son.

[00:24:47] Speaker 03:
It included also the agent's testimony about the red flags, the things like buying numerous of the same kind of gun,

[00:24:54] Speaker 03:
when your finances don't support it.

[00:24:56] Speaker 03:
It included things like her own testimony that even her own children, her daughter at least, seemed to think didn't make sense that she had bought those guns for a business that had not even materialized at all.

[00:25:10] Speaker 03:
So those are some of the overwhelming pieces of evidence, Your Honors, that we would submit demonstrated that this jury knew the verdict.

[00:25:17] Speaker 03:
And this particular juror looking at those two pictures, which is the only thing in the record that extrinsically he looked at,

[00:25:24] Speaker 03:
that those did not impact that verdict beyond a reasonable doubt.

[00:25:29] Speaker 03:
Your Honors, I also want to note that even the size of the guns, whatever they looked like, whatever images he saw, it didn't really matter because he makes clear in his testimony on that motion for new trial hearing that what actually

[00:25:46] Speaker 03:
got his attention, because I know that the opening brief really leans into this idea that this was a really important piece of the puzzle for him.

[00:25:54] Speaker 03:
But what he said when you look at his testimony in the stand was that what was important for him was that you had a text message from the son, or a WhatsApp message, excuse me, saying, find out if they have a clip for a 43.

[00:26:10] Speaker 03:
And she had bought guns that were not 43s, period.

[00:26:15] Speaker 03:
That was the thing that stood out for him.

[00:26:17] Speaker 03:
So you had a receipt, you had the testimony about all the guns she bought, and you had him asking about that.

[00:26:22] Speaker 03:
But he also asked about other guns, too.

[00:26:24] Speaker 03:
So it was clear that it wasn't just this particular piece of information.

[00:26:29] Speaker 03:
It wasn't just this particular comparison of these guns.

[00:26:32] Speaker 03:
In fact, looking at their pictures would have had nothing to do in terms of the evidentiary value of that versus what he actually said the evidentiary value of that WhatsApp message meant to him, which was that here he's asking about something, and she hasn't bought any of those things.

[00:26:47] Speaker 03:
And so I would submit that that also further supports the district court's conclusion that, again, beyond a reasonable doubt, the government demonstrated this did not impact the verdict.

[00:26:55] Speaker 03:
Your Honor, I'll turn to the issue of Duarte if the court is ready to move on to that.

[00:27:02] Speaker 03:
So we obviously read it differently.

[00:27:04] Speaker 03:
I would submit to the court that the government's position is not impacted by Duarte.

[00:27:12] Speaker 03:
Duarte says that 922G1,

[00:27:16] Speaker 03:
is a problem.

[00:27:17] Speaker 03:
But it doesn't talk about 922A6.

[00:27:19] Speaker 03:
Every court, and they're all district courts that I could find decisions for that have looked at 922A6, have all come out the opposite way.

[00:27:28] Speaker 03:
And it's consistent with Bruin, which is that you start with the plain language of the Second Amendment.

[00:27:33] Speaker 03:
Duarte affirms that.

[00:27:35] Speaker 03:
When you look at that, if that regulation is not implicated by the plain language of the Second Amendment, then you need not move further in the Bruin analysis.

[00:27:45] Speaker 01:
And we would submit, Your Honor, that Duarte affirms what we said in our brief, which is that... So the Second Amendment doesn't apply to lying when you purchase a firearm.

[00:27:54] Speaker 01:
It doesn't apply to transferring firearms once you receive them, and it just relates to possession and self-defense?

[00:27:59] Speaker 03:
The focus of the Second Amendment was the right to possess and, as Duarte explains, the right to possess and utilize and self-defense.

[00:28:08] Speaker 03:
But yes, Your Honor, that is what we understand Ruin to say and Duarte to say, that

[00:28:13] Speaker 03:
It doesn't reach this regulation regarding how you purchase a firearm.

[00:28:20] Speaker 03:
And district courts that have considered Bruin, obviously they didn't have Duarte, but considered Bruin since its issuance, N922A6 have all come out that way, that the Second Amendment is not implicated.

[00:28:32] Speaker 03:
And so no further analysis is needed.

[00:28:34] Speaker 03:
I would specifically, Your Honors, point to language in the Duarte decision.

[00:28:42] Speaker 03:
Your Honor, may I just grab it quickly?

[00:28:55] Speaker 03:
Now, Your Honors, I'm looking at the PDF version that's pulled from the Ninth Circuit website.

[00:29:02] Speaker 03:
So I'm turning to page 53 of that PDF.

[00:29:09] Speaker 03:
And there's a lengthy section that talks about basically the beginning of the paragraph says, the nature of the burden imposed by these laws, talking about laws relating to foreign use of or possession of firearms by others,

[00:29:25] Speaker 03:
who were perceived to be arming a foreign, laws relating to arming a foreign enemy, or people who might be perceived to be part of a foreign enemy.

[00:29:33] Speaker 03:
The Duarte decision notes that those are different, essentially.

[00:29:37] Speaker 03:
Most colonial enactments targeting Indians regulated a different type of conduct.

[00:29:44] Speaker 03:
Rather than ban Indians from possessing firearms, the laws prohibited the sale of arms to them by colonial residents.

[00:29:50] Speaker 03:
And it goes on to talk about that issue.

[00:29:52] Speaker 03:
And I point that out to make the argument, Your Honors,

[00:29:54] Speaker 03:
Essentially, what I understand them to saying is that 922G isn't about regulating the transfer or the sale.

[00:30:03] Speaker 03:
It's focused on that possession piece, which is why it was not satisfied with the government's offering of those laws with respect to finding an historical analog.

[00:30:13] Speaker 03:
Your Honor, I would also submit that because Duarte has just come down, even if the court found that

[00:30:22] Speaker 03:
Your Honor, what I would say is that no matter what, it seems that Duarte does not impact the lay of the land when it comes to 922-86, and that the Court should not find it necessary to go beyond that initial review of the Second Amendment to determine whether or not there's any need to find analog, because again, it's not implicated by the plain language of the Second Amendment.

[00:30:46] Speaker 03:
Unless the Court has any further questions for me, I would just ask that the Court do

[00:30:50] Speaker 04:
I do have another question.

[00:30:53] Speaker 04:
Go ahead, Your Honor.

[00:30:56] Speaker 04:
Ms.

[00:30:56] Speaker 04:
Manning is objecting also to the district courts, the sentence imposed by the district court, the way that the conditions of release were not stated on the record.

[00:31:10] Speaker 04:
Do you have any argument as to that?

[00:31:12] Speaker 03:
Your Honor, in the government's brief, we noted that the district court

[00:31:16] Speaker 03:
incorporated reference to the PSR, and the PSR references the sentencing guidelines, and specifically where it lays out the 13 special conditions, or standard conditions.

[00:31:27] Speaker 03:
Were those attached to the PSR?

[00:31:29] Speaker 03:
Physically attached, or is it?

[00:31:30] Speaker 03:
It's just a reference, Your Honor.

[00:31:31] Speaker 03:
And so I recognize that that might not be sufficient for this court's purposes in terms of making sure that Miss Manny had an opportunity to object.

[00:31:41] Speaker 03:
Looking back at the record, there is a clear indication that the paper was handed in open court

[00:31:47] Speaker 03:
But the court first says, I'm going to impose the standard conditions, and then says, I'm also going to impose the special conditions.

[00:31:53] Speaker 03:
Do you acknowledge that you received the paper that's handed to you in open court?

[00:31:57] Speaker 03:
Unfortunately, that's also not attached to anything.

[00:31:59] Speaker 03:
So with those two pieces, Your Honors, I recognize that there may be some deficiency.

[00:32:04] Speaker 03:
And so if the court felt uncomfortable with the record as it is now, we would agree that a limited remand just for the purposes of discussing those 13 standard conditions would be appropriate.

[00:32:15] Speaker 04:
Thank you.

[00:32:16] Speaker 03:
Thank you, Your Honor.

[00:32:28] Speaker 02:
Thank you, Your Honors.

[00:32:30] Speaker 02:
Just addressing the last question first with Montoya.

[00:32:32] Speaker 02:
The PSR was referenced, but it wasn't actually incorporated into the court's final rulings as to conditions.

[00:32:40] Speaker 02:
And as government pointed out, the PSR did not actually list the conditions.

[00:32:46] Speaker 02:
And so we would ask that this court does what it does in many cases and remand to clarify those, which is important because Ms.

[00:32:54] Speaker 02:
Manning is now on supervised release.

[00:32:56] Speaker 02:
So she needs to know what conditions apply.

[00:33:00] Speaker 02:
And moving to Duarte and Bruin, it appears the government's arguing that Bruin doesn't apply in any matter as to sales or purchasing of firearms, which I think is not the case with Bruin.

[00:33:17] Speaker 02:
In Duarte, at page seven, they say Bruin expressly requires court to assess whether any, and they stress any,

[00:33:27] Speaker 02:
Regulation infringing on Second Amendment rights is consistent with this nation's historical tradition.

[00:33:33] Speaker 02:
And so that's a very broad statement.

[00:33:37] Speaker 02:
And the ASIC statute does fall under the chapter referring to firearms.

[00:33:42] Speaker 02:
It is specifically a crime only in connection with the purchase of a firearm.

[00:33:48] Speaker 02:
And so we argue that that does fall under the Second Amendment and the government has waived any argument as to the historical analog in this case, warranting dismissal on that ground.

[00:34:02] Speaker 02:
And to go to the encounter outside of the firearms store, again, I think what's most important is that we don't have a recording.

[00:34:15] Speaker 02:
Even though this was planned, that these three officers would come and they would, he described it as an interdiction where they would confront her with evidence and it could become this contentious interrogation.

[00:34:31] Speaker 02:
that they did not record the encounter even though they did have cell phones that could have recorded the encounter.

[00:34:37] Speaker 02:
And it's also troubling that the district court got such basic facts about the encounter wrong that there were only two officers when all along the testimony was that these three officers were coming to interdict her and then a fourth officer arrived.

[00:34:56] Speaker 02:
And that's just one example

[00:34:58] Speaker 02:
of the errors that the district court made based on the record here?

[00:35:03] Speaker 04:
I'd like some clarification.

[00:35:04] Speaker 04:
Earlier, counsel for the government mentioned when I asked about how quickly the verdict was reached by the jury, we were told five minutes, and then they had lunch.

[00:35:22] Speaker 04:
So you mentioned, yeah, they said five minutes, but they were there for an hour.

[00:35:27] Speaker 02:
Well, they were there for an hour before the verdict was returned to the court.

[00:35:31] Speaker 04:
Was there, I mean, was there testimony?

[00:35:33] Speaker 02:
And there was a lunch.

[00:35:34] Speaker 02:
There was a lunch that the jury had.

[00:35:37] Speaker 04:
And the juror did testify that they talked about in the first five minutes or they reached their verdict quickly and then had lunch?

[00:35:44] Speaker 02:
I believe he said they did reach their verdict rather quickly.

[00:35:47] Speaker 02:
I don't know that we have, that we know whether they continue to discuss the case during lunch or any

[00:35:54] Speaker 02:
any of that because he was the only juror that was examined.

[00:35:58] Speaker 02:
No other juror was examined, which is a big difference between this and other cases.

[00:36:04] Speaker 02:
Typically, more of the jury is interviewed.

[00:36:07] Speaker 02:
But what's important is that the district court couldn't ask, did this affect his verdict?

[00:36:14] Speaker 02:
Did he say this affected his verdict?

[00:36:16] Speaker 02:
That is a question that's prohibited.

[00:36:19] Speaker 02:
And what the court has to do is could this reasonably have affected the verdict for anyone?

[00:36:25] Speaker 02:
And again, it was brought up to the entire jury that these were supposedly different size guns, meaning they weren't interchangeable when in fact that was not the case.

[00:36:34] Speaker 02:
And again, there was no testimony on this point, even though the district court found that there was.

[00:36:40] Speaker 02:
There is no testimony as to the differences between of Glock 43 or Glock 19 or the lack thereof.

[00:36:50] Speaker 02:
And unless there are further questions from the court, we'll ask this court to dismiss or vacate for a new trial.

[00:36:57] Speaker 00:
Thank you very much.

[00:36:58] Speaker 00:
Okay.

[00:37:00] Speaker 00:
This case is now submitted and that concludes our argument for this morning.

[00:37:03] Speaker 00:
The court will stand in recess.